MONTALBANO v. KURT WEISS FLORIST INC (2003)

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Berler, J.), entered September 25, 2002, which granted the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

The plaintiff, an employee of K-Mart Stores, Inc. (hereinafter K-Mart), was injured when a co-worker drove a forklift over his right foot.   At the time, the plaintiff and his co-worker were trying to hoist a pallet jack onto a forklift owned by K-Mart and operated by the co-worker, and then onto a delivery truck owned by the defendant.   The driver of the defendant's delivery truck had not brought a pallet jack with him and instead requested the plaintiff to obtain one from K-Mart so that the truck could be unloaded.

Relying on the commercial relationship between the defendant and K-Mart, the plaintiff contends that the defendant is liable to him for failing to perform its commercial obligations in a non-negligent fashion.   The plaintiff also contends that the defendant is vicariously liable for the acts of his co-worker because the latter became a special employee of the defendant during the course of the task.

Although a person's status as a special employee is generally a question of fact, it may be determined as a matter of law “where the particular, undisputed critical facts compel that conclusion and present no triable issue of fact” (Thompson v. Grumman Aerospace Corp., 78 N.Y.2d 553, 558, 578 N.Y.S.2d 106, 585 N.E.2d 355;  Small v. Winter Bros., 302 A.D.2d 445, 753 N.Y.S.2d 746;  DeRubeis v. D & F Wastepaper Co., 273 A.D.2d 434, 435, 711 N.Y.S.2d 750;  Levine v. Lee's Pontiac, 203 A.D.2d 259, 260, 609 N.Y.S.2d 918).

The plaintiff adduced no evidence that K-Mart surrendered control over the manner, details, and ultimate result of his co-worker's activities, or that the defendant assumed any control over those details and results (see Vanderwerff v. Victoria Home, 299 A.D.2d 345, 749 N.Y.S.2d 75;  Carino v. Kenmare Remodeling, 292 A.D.2d 555, 556, 739 N.Y.S.2d 592;  Martin v. Baldwin Union Free School Dist., 271 A.D.2d 579, 580, 706 N.Y.S.2d 712).   The fact that the plaintiff's co-worker performed a task at the request of the defendant, without more, does not create an employer-employee relationship between the defendant and the plaintiff's co-worker (see Eddy v. White, 304 A.D.2d 959, 759 N.Y.S.2d 200;  Sherman v. Reynolds Metals Co., 295 A.D.2d 843, 845, 744 N.Y.S.2d 553;  cf.  Konstantinovsky v. Golden Chocolate, 210 A.D.2d 299, 620 N.Y.S.2d 74;  Richiusa v. Kahn Lbr. & Millwork Co., 148 A.D.2d 690, 692, 539 N.Y.S.2d 438).

Contrary to the plaintiff's argument, the defendant did not assume a duty of care toward the plaintiff by virtue of its commercial relationship with the plaintiff's employer (see Espinal v. Melville Snow Contrs., 98 N.Y.2d 136, 141-142, 746 N.Y.S.2d 120, 773 N.E.2d 485).